Why Citizens United Was Decided Correctly
The outrage over the decision in the Citizens United case is misplaced.
Four points need to be made about the law as it stood just before Citizens United was decided:
1) Media corporations were free to publish advocacy and issue “ads,” although
congress held the power to end this freedom. This was federal law as to federal
Advocacy ad: Vote for (or against) Candidate X. These are “magic words.”
Issue ad: Doesn’t contain the magic words.
2) Non-profit corporations that received no corporate money were free to
publish advocacy and issue ads. This was federal law as to federal elections.
3) Any corporation was free publish issue ads. This was federal law as to federal
4) States could ban corporate political speech of any type relating to state and
local elections by showing a compelling state interest in so doing.
The Citizens United group fell into a crevice between 2 and 3. It had received a small amount of corporate funding, which meant it didn’t fit category 2. Its proposed means of expression — selling Hillary, the Movie to a cable pay-per-view company — was functionally advocacy against Hillary Clinton in her quest to become president, so it didn’t fit category 3 either.
In this crevice. congress claimed the power to regulate corporate political speech.
The crevice was in fact quite narrow. Why? Because an “issue” ad that wasn’t functionally advocacy avoided the censor. One problem for the courts, therefore, was to draw the line between issue speech and advocacy speech. The line was very blurry. Activist, outcome-oriented judges like Ginsburg and Stevens love blurry lines.
In Citizens United, the Supreme Court ruled congress cannot have this power it claimed to have. Why? Because of the First Amendment command: “Congress shall make no law…abridging freedom of speech.”
The notion that before Citizens United, the First Amendment did not apply to corporations is nonsense. Since 1973, the Court has held the First Amendment applies to corporate commercial speech. In various decisions over the years, the Court has held not only that the First Amendment applies to corporations, but also that the Fourth and Fifth Amendments apply.
Citizens United also struck down state laws regulating corporate political speech inconsistent with its holding as to the First Amendment. This was unavoidable. A state law that violates the Constitution cannot stand. There are myriad examples in which the Court has struck down state laws.
Some so-called progressive advocates, including certain politicians, want to whip up popular outrage in order to fleece the pockets of those who are outraged. It’s all in good fun, of course.
Citizens United will prove to be a great decision, except for lousy incumbents and those who would censor. More political speech is always better than less.